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treatment be justified? It could not be justified by any reason in English law. But continental systems, as we have seen,1 justified it on the ground that the prosecutor must make his case so plain that it would be useless to look at any contrary testimony. This explanation, which rested on the continental theory of proof, was eagerly adopted by the common law judges. But it is clear from statutes of 15893 and 1607 that this refusal to allow the accused to call witnesses was beginning to shock public opinion. The expedient was therefore resorted to of allowing the accused to call witnesses, but of refusing to allow them to be sworn. But this was a wholly illogical compromise. The explanation given of the older rule did not fit in very well with a system which had not received the continental system of proof. But for the newer rule no possible explanation, based either on English law or continental law, could be given. Hale said that he could find no reason for it. But it gave advantages to the government; and so it was maintained as a rule of criminal procedure till the legislature intervened to remove it at the end of the seventeenth century."

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(iv) The conduct of a criminal trial recalls some of the features of the continental procedure. "At the trial," says Stephen,7 7 "there were no rules of evidence as we understand the expression. The witnesses were not necessarily (to say the very least) confronted with the prisoner, nor were the originals of documents required to be produced. The confessions of accomplices were not only admitted against each other but were regarded as specially cogent evidence." Moreover the state trials of the period, and Smith's account of a criminal trial, show that the prisoner himself was closely questioned by the witnesses or prosecuting counsel. The privilege against self-crimination

1 Above 175.

2" In criminalibus probationes debent esse luce clariores," Third Instit. 210; Whitebread's Case (1679) 7 S.T. 359 per Scroggs C.J., cited Thayer, Evidence 160,

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331 Elizabeth c. 4.

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4 4 James I. c. 1 § 6; see Thayer, Evidence 159 n. 5 Pleas of the Crown ii 283- Regularly the evidence for the prisoner in cases capital is given without oath, tho' the reason thereof is not manifest.' 67 William III. c. 3 (treason); I Anne c. 9 (treason and felony). 7 H.C.L. i 350; J. Pollock, The Popish Plot 292-295.

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8 De Republica Anglorum, Bk. II. c. 26, having explained that the witnesses against the prisoner are first sworn, he says "The Judge asketh the partie robbed if he knowe the prisoner, and biddeth him looke upon him: he saith yea, the prisoner sometime saith nay. The partie pursuivant giveth good ensignes The theefe will say no, and so they stand awhile in altercation, then he telleth al that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens which we call in our language evidence against the malefactor;" Stephen points out, H.C.L. i 325-326, that every statement of counsel operated as a question to the prisoner, and indeed they were constantly thrown into the form of questions. the result was that... the examination of the prisoner which is at present scrupulously, and I think even VOL. V.-13

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was wholly unknown to the common law of this period. It is not until after the Restoration that this privilege was recognized. All through this period the prisoner was closely examined by the magistrate before the trial, and by the judge and prosecuting counsel at the trial.1

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(7) We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown, which could, in times of emergency, override the common law. We shall see that Coke in the earlier part of his career admitted the existence of this extraordinary power.3 He therefore saw no objection to the use of torture thus authorized.4 But we shall see that his views as to the existence of this extraordinary power changed, when the constitutional controversies of the seventeenth century had made it clear that the existence of any extraordinary power in the crown was incompatible with the liberty of the subject. It is not surprising therefore, that, in his later works, he states broadly that all torture is illegal." It always had been illegal by the common law, and the authority under which it had been supposed to be legalized he now denied. When we consider the revolting brutality of the continental criminal procedure, when we remember that this brutality was sometimes practised in England by the authority of the extraordinary power of the crown, we cannot but agree that this single result of the rejection of any authority other than that of the common law is almost the most valuable of the many consequences of that rejection. Torture was not indeed practised so systematically in England as on the continent; but the fact that it was possible to have recourse to it, the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a demoralizing effect upon all those who had prisoners in their power. Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalizes those who have become accustomed to use it. We

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pedantically, avoided, was the very essence of the trial. . . . The whole trial in fact was a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning; Wigmore, H.L.R. xv 629; Udal's Case (1590) I S.T. 1271, 1275, 1289 there cited.

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1 Wigmore, The Privilege against Self-crimination, H.L.R. xv 627-634; Pt. II. 7 § 1. 4 Above 185 n. 10. 7 Above 174-175.

2 Above 186.

5 Below 451, 452.

8 Cp. above 192 n. I.

3 Below 427, 451, 452.
6 Above 185 n. 5.

9 Stephen was told that one of the reasons why native police officers in India occasionally tortured prisoners was laziness—“It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence," H.C.L. i 442 n. I.

shall see that Coke, more than any other single man, helped to secure the victory of the principle that the common law is supreme in the state.1 To him therefore we must chiefly give thanks for preventing the progressive demoralization of our criminal procedure, by making the use of torture legally impossible.

In these various ways the criminal procedure of the common law was, during this period, influenced by the continental ideas. It seems to me that, though these ideas were not and could not be applied in the Star Chamber, the Council and the Star Chamber had some influence in gaining the acceptance of the common law for some of them. Some at least of the members of the Council and Star Chamher were acquainted with them. The judges were to a large extent directed and controlled by the Council. All classes agreed that a stern criminal law was necessary to insure the safety of the state, and the security of life and property. We cannot wonder therefore that some of the rules of a procedure, which was in all its parts designed to secure these objects, should be copied. Fortunately it was not possible to copy these rules in their entirety. But enough was copied to give the criminal procedure of this period a very bad name among historians who have compared it, not with the contemporary continental criminal procedure, but with the criminal procedure of our own times. It is clear that the former standard is the fairer of the two. Tried by this standard, or even by the standard of the continental criminal procedure of modern times, it was, in the opinion of Stephen,2 conspicuously fair to the accused. It is true that the prisoner was prevented from calling witnesses and preparing his defence; that he was deprived of the help of counsel, and repeatedly questioned both before and during his trial. It is true that torture was administered in some cases to make him disclose what he knew; and that the court did not start with any presumption in favour of his innocence. But the trials were at least public, and the prisoner was allowed to make what statements he liked. 'His attention was pointedly called to every part of the case against him, and if he had a real answer to make he had the opportunity of bringing it out effectively and in detail. It was but seldom that he was abused or insulted . . . the real point at issue was usually presented to the jury not unfairly." Obviously this public oral trial presented many more opportunities to a prisoner than the secret enquiry based on written depositions, which, on the

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1 Below 450-454.

3 Stephen, H.C.L. i 355.

2 H.C.L. i 356.

continent, had taken the place of a trial.1 Both the common law courts and the Star Chamber sometimes professed to believe in the maxim that it is better to let many guilty escape than convict one innocent person; 2 and we have seen that this belief had been translated by the common lawyers into concrete rules of procedure and pleading which gave, as they were intended to give, many advantages to the accused. No continental criminal court could ever have professed such a belief-their whole procedure was based upon the opposite view. Though we condemn this view, it is only fair to those who held it to remember that, as late as the eighteenth century, it was approved by no less a man than Paley.*

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There is one lesson which can, I think, be learned from the history of the development of the continental and the English criminal procedure of this period. We have seen that the manner in which the accused was either deprived of or hampered in his liberty of defence, and the systematic use of torture, which make the history of this branch of the law one of the most revolting episodes in the history of mankind, were not only tolerated, but even applauded by a large body of public opinion. We have seen that they were applauded because the government was so weak and its enemies were so strong that it was felt, not without reason, that it must take every advantage of its enemies. It was, as Stephen has said, "not strong enough to be generous." 5 It would seem to follow, therefore, that the maintenance of a strong government and of habitual respect for the law are the conditions precedent for the existence of a criminal procedure which is fair to the accused. If a government once allows any body of men to become so strong that they can defy the law with impunity, if by its conduct it destroys that instinctive respect for the law to which civilized nations have painfully attained, it will be obliged, in order to regain its lost authority, to resort to methods similar to those which were found to be necessary in the sixteenth century. A nation cursed with such a government will begin to fear its criminals; and fear, as Gardiner has said," is the parent of cruelty.

1 Smith, De Republica Anglorum, Bk. II. c. 26, specially notes the contrast between the continental procedure and the public and oral character of the English procedure.

2 Fortescue, De Laudibus c. 27, cited vol. iii. 620; "it was well sayde by them that it were better to acquite twenty that are guytlie than condempne one Innocente,' Hawarde, Les Reportes del Cases 320.

3 Vol. iii 620.

4 Principles of Moral and Political Philosophy ii 310, cited J. Pollock, The Popish Plot, 303.

H.C.L. i 355.

6 History of England i 124, 125—“We live in days when, happily, it has become almost impossible to conceive of a treason which should really shake the

But we must return to the court of Star Chamber. We shall now see that its influence upon the substantive law of crime and tort was similar in kind to its influence upon the criminal procedure of the common law; but that that influence was in some respects more direct and more permanent in its character.

(ii) The influence upon English law of some of the substantive rules of law enforced in the Star Chamber.

I have already dealt with the new principles of public law which were enforced by the Council and Star Chamber. We have seen that they tended to introduce a closer control of the servants of the crown, and a set of new ideas as to the relations between the crown and its servants.1 I have also dealt with the manner in which the law as to forgery and perjury was developed by the Star Chamber.2 Here I must indicate the manner in which it developed in a similar manner the law as to certain other criminal offences under the degree of felony. We have seen that, at the latter part of the medieval period, the delictual aspect of trespass had been developed by the common law at the expense of its criminal aspect; and that in consequence the criminal law badly needed to be strengthened. This was apparent even in the medieval period from the cases which came before the Council. With the manner in which it was strengthened by the legislature I have already dealt.5 We must now look at the manner in which it was strengthened both by the direct action of the Star Chamber, and by the example of activity in the repression of crime which it set to other courts.

We can trace this influence of the Star Chamber in seven directions:-(a) Violent wrongdoing; (b) Attempts to commit crimes; (c) Maintenance and other offences against the administration of justice; (d) Conspiracy; (e) Libel and slander; (ƒ) Fraud; (g) Acts contrary to public policy.

(a) Violent wrongdoing.

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The Star Chamber dealt with many forms of violent wrongdoing. First come the offences of riot, rout, and unlawful assembly. We have seen that some of them had been dealt with by the legislature. But as a rule the legislature dealt only with country. Consequently, a person accused of this crime is in our eyes, at the most, a misguided person who has been guilty of exciting a riot of unusual proportions We cannot work our minds up to be afraid of him, and fear, far more than ignorance, is the parent of cruelty." 1 Vol. iv 85-87.

2 Ibid 502-503, 516-519. The nature of the cases which came before the Council in the medieval period, when Chancery and the Council worked together, will be seen from my account of some of the early Chancery Cases, below 289-291.

3 Vol. iii 317-318, 370-371; vol. iv 512-513.

5 Vol. iv 492-532.

6 Hudson, op. cit. 82-88.

7 Vol. iv 497, 503, 513; some of these statutes are mentioned by Hudson, op. cit. 84.

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